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The Stupak Amendment

bart stupak

The big news over the weekend was that the House passed its version of the health care bill with a vote of 220-215.  But the big news within the big news was a last minute amendment introduced by Rep. Brad Stupak (D-Mich.) restricting access to abortion.

What happened?
From day one, Obama and House leaders wanted to keep abortion from becoming an issue in the health care debate, so they simply said that the health care bill wouldn’t change existing law.  In this case, existing law is

  • the Supreme Court’s Roe v Wade decision, which made abortion legal; and
  • the Hyde Amendment, passed back in 1976, which states that federal funding can’t be used to pay for abortions in Medicaid (except in cases of rape, incest, or when a pregnancy endangers the life of the mother).  Since 1976, this rule has been expanded to cover not just Medicaid but all federal insurance programs.

The legislation was worded carefully, to calm conservative democrats like Stupak.  As Naomi Freundlich explains on Maggie Mahar’s Health Beat Blog:

The fact of the matter is that the House bill contains more than two dozen references to abortion and virtually all of them describe how insurers can restrict or deny coverage for the procedure. For example, abortion is not included in the essential benefit package for insurance plans (both private and public) that want to participate in the exchanges.

The bill also makes permanent the Hyde Amendment’s ban on the use of federal funding for abortion except in the cases of rape, incest, or to ensure the life of the mother. Specifically, the bill prohibits the use of federal affordability subsidies to pay for abortions—requiring private insurers to tap funds derived from policyholder premiums if they choose to provide coverage for the procedure.

And the bill goes even further in trying to appease abortion foes.  Timothy Jost, a law professor at Washington and Lee University School of Law, explains that according to the bill:

  • Federal and state governments may not discriminate against providers or plans for refusing to cover, provide, or refer for abortions (although the government is not prohibited from discriminating against those that do).
  • Exchanges are not obligated to offer at least one plan that does cover abortion, as the Senate bill requires.  It does state, however, that exchanges have to offer at least one plan that does not cover abortion.

So it seemed like that would be enough to satisfy conservative Democrats that federal abortion law was unchanged, and they could get back to calling Obama a socialist or whatever.

But no.  Instead, Stupak and 39 other Democrats threatened to vote against the health care bill unless he could offer his amendment.

What does the Stupak Amendment say?
The original bill states basically what federal law has said for the past 20 years- that federal funds can’t be used to pay for abortions.  The Stupak Amendment states that federal funds cannot be used to pay for any part of any plan that covers abortions.

Here’s why that little change of wording is an issue.  More than 80% of people who buy insurance though the exchange will use a combination of their own money and federal subsidies to pay for it.  There’s no existing federal law preventing private money from going towards an abortion.  But Stupak’s amendment would do just that… in a way.  A plan couldn’t offer abortion if it took people who received subsidies, even if it used non-federal money it got from individual premiums to pay for the procedure.

One way to look at it that the Stupak amendment is that it’s the first law since Roe v. Wade that would “prohibit women paying for abortions with their own funds” as Congresswoman Diana DeGette (D-CO) put it.  But that’s not totally accurate– really it prevents insurance companies from offering abortion as part of a comprehensive plan to women who are paying partly with their own funds.  Under the amendment, women receiving subsidies could still use their own funds to purchase a supplemental insurance rider to cover abortion– but choice advocates feel that is unacceptable for a number of reasons.

What does all this mean for health care reform?
For one, pro-choice supporters are very, very angry.  Jane Hamsher at FireDogLake called it a “punch in the throat“– and that was actually mild compared to the stuff we found on some blogs.  And in the House, liberal reps have enough votes to stop health care reform if the Stupak amendment remains.

On the one hand, some of them overstate how big an impact Stupak’s amendment would have on access to abortion (for one, the vast majority of abortions are paid for out of pocket, even in cases when it would be covered by insurance).  But on the other hand that’s not really the point.  Here’s Obama after the Stupak amendment was passed:

You know, I laid out a very simple principle, which is this is a health care bill, not an abortion bill. And we’re not looking to change what is the principle that has been in place for a very long time, which is federal dollars are not used to subsidize abortions. And I want to make sure that the provision that emerges meets that test — that we are not in some way sneaking in funding for abortions, but, on the other hand, that we’re not restricting women’s insurance choices.

Choice advocates stuck to what you could call a truce over abortion in the House bill.  But they woke up on Sunday to see the other side had turned health care reform into a battle over abortion and declared a victory.

As for Stupak and the 39 other democrats, Naomi Freundlich again:

By doing this, these Congressmen are sacrificing the far more important goals of reform—making health coverage affordable, covering the uninsured and reducing skyrocketing health care costs—for an ideological battle that should be fought elsewhere.

{ 4 comments… add one }
  • Emily Cleath November 12, 2009, 1:12 pm

    great summation and analysis of what happened. thanks!

  • Timothy Jost November 12, 2009, 1:59 pm

    Since this post quotes my post at Health Affairs on the treatment of abortion by HR 3962 prior to the Stupak Amendment, I need to correct an error in that post. The original HR 3962 did intend to require exchanges to include plans that both covered abortions and those that did not, but the provision that did so did not mention abortions but instead tried to cross-reference an earlier provision describing abortions, and did so using the wrong sub-section number. This provision was eliminated by the Stupak amendment, so that now exchanges are clearly not required to include plans offering abortions under the House bill.

  • John Nagle November 12, 2009, 3:31 pm

    First, I agree with Emily Cleath that this was a very informative summation. Second, I read and re-read Timothy Jost’s comment and I read Jost’s original blog and am confused again. To clarify, I’m 95% certain that the “that post” in your second line should be “my (Jost) post”. Jost’s last sentence leaves one with the impression that the Stupak amendment only corrects an error in the bill. Timothy, would you please clarify? (Maybe a new blog?)

  • timothy jost November 22, 2009, 11:27 pm

    Sorry John for the confuson. Let me try again. My original Health Affairs post about the abortion language was in error. The original House bill required exchanges to offer both plans that offered abortions beyond those covered by the Hyde Amendment and plans that did not. The Stupak amendment eliminated that requirement. The requirement that exchanges offer both kinds of plans is in the Senate bill, however (for the moment).

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